Sick, but Legally Sacked for Taking Sick Leav

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 (5 November 2015)

In a bizarre twist to the fable of crying wolf, an employee who was sacked for legitimately claiming sick leave when the employer thought he was not really sick, has lost his adverse action in a federal court appeal.

The employee applied for two days annual leave around Anzac Day, but because he applied so close to the due dates, his application was rejected. So the employee said he would take sick leave instead, and get a certificate. He took the days off he had intended to take, and presented a sick certificate on his return to work.

He was sacked, and the manager making the decision maintained that he took that action because the employee had adopted a defiant stance, saying he would take the time off irrespective of the company’s position. As it turned out, the employee was actually sick. He claimed adverse action had been taken against him for exercising a workplace right, namely, his right to sick leave.

At first instance the federal court found the reason for the sacking was not the exercise of a workplace right, but the attitude the employee adopted – he was going to take the days off, come what may. At this point, the court had to dismiss the matter, since in adverse actions, the court has to decide that, if there was adverse action, was it for a prohibited reason. If not, then the employer has no case to answer.

The employee appealed and the majority agreed with the original finding. The dissenting judge found that the manager’s decision was based on an error. Since the employee really was sick, he should not have been sacked. But the majority made the finding that the employee had effectively goaded his employer by saying if he didn’t get the annual leave approved, he would take sick leave anyway.

The court made very clear that the employee was not sacked because he took sick leave, but rather because his behaviour prior to his absence led the manager to the conclusion that he was dishonestly claiming sick leave. Even though subsequently it was found the employee was sick, at the critical time of making the decision to sack the employee, the manager genuinely believed the sick leave to be fraudulent. Hence the reason for the dismissal was not for a prohibited reason.